J-A05038-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

AVRUM M. BAUM, AS PARENT AND 

GUARDIAN OF CHAYA BAUM, 

INDIVIDUALLY AND ON BEHALF OF ALL 

OTHERS SIMILARLY SITUATED, 

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

KEYSTONE MERCY HEALTH PLAN AND 

AMERIHEALTH MERCY HEALTH PLAN,

Appellees No. 1250 EDA 2015

Appeal from the Order March 27, 2015

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): January Term, 2011, 3876

BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 26, 2016

Appellant Avrum M. Baum appeals from the order entered on March 

27, 2015, by the Honorable Mary D. Colins in the Court of Common Pleas of 

Philadelphia County denying his motion for class certification for a claim 

against Appellees, Keystone Mercy Health Plan and Amerihealth Mercy 

Health Plan alleging deceptive conduct under the catchall provision of the 
J-A05038-16

- 2 -

Unfair Trade Practices and Consumer Protection Law (“UTPCPL”).1 Upon our 

review of the record, we affirm.2 

This is the second time this Court has been called upon to consider the 

trial court’s denial of Appellant’s motion for class certification in this matter. 

In a memorandum decision filed on December 9, 2014, a panel of this Court 

affirmed in part and vacated in part the trial court’s order of July 25, 2013, 

denying Appellant’s motion and remanded the case for further proceedings. 

In doing so, this Court found the trial court had not abused its discretion 

when it denied Appellant’s motion for class certification under Pa.R.C.P. 

1702(3) for failure to show typicality;3 however, for reasons discussed more 

____________________________________________

1 73 P.S. § 201-1, et seq. 

2 An order denying class certification is an appealable collateral order. 

McGrogan v. First Commw. Bank, 74 A.3d 1063, 1079 (Pa.Super. 2013); 

Pa.R.A.P. 313(b) (providing an order is immediately appealable as a 

collateral order if said order is “separable from and collateral to the main 

cause of action where the right involved is too important to be denied review 

and the question presented is such that if review is postponed until final 

judgment in the case, the claim will be irreparably lost”).

3

Pennsylvania Rule of Civil Procedure 1702 requires the following criteria to 

be met for a class action to proceed: 

Rule 1702. Prerequisites to a Class Action

One or more members of a class may sue or be sued as 

representative parties on behalf of all members in a class action 

only if

(1) the class is so numerous that joinder of all members is 

impracticable; 

(2) there are questions of law or fact common to the class; 

(Footnote Continued Next Page)
J-A05038-16

- 3 -

fully infra, we further held the trial court had abused its discretion when it 

determined that Appellant’s UTPCPL claim could not be certified to the extent 

it alleged deceptive conduct under the UTPCPL’s catchall provision.4 See 

Baum v. Keystone Mercy Health Plan, et al., No. 2667 EDA 2013, 

unpublished memorandum at 13 (Pa.Super. filed December 9, 2014). 

In our December 9, 2014, memorandum decision, we referenced the 

trial court’s summary of the relevant factual and procedural history of this 

case as follows:5

(4) [Appellant] is a resident of Philadelphia, Pennsylvania, and 

is the father and guardian of Chaya Baum, a special-needs minor 

child who has health insurance with [Appellee] Keystone Mercy 

Health Plan. [Appellant] himself was and is not insured by 

[Appellees].

(Footnote Continued) _______________________

(3) the claims or defenses of the representative parties are 

typical of the claims or defenses of the class; 

(4) the representative parties will fairly and adequately assert 

and protect the interests of the class under the criteria set forth 

in Rule 1709; and 

(5) a class action provides a fair and efficient method for 

adjudication of the controversy under the criteria set forth in 

Rule 1708. 

4

In 1996, “deceptive conduct” was added as a violation to the catchall 

provision of the UTPCPL and recodified at 73 P.S. § 201-2(4)(xxi); prior to 

that time, the catchall provision, Section 201-24(xvii) of the UTPCPL, 

referenced only “fraudulent conduct.” 

5

In its March 25, 2015, Opinion, the trial court incorporated these findings 

of fact which it previously had set forth in its opinion of July 25, 2013, filed 

pursuant to Pa.R.A.P. 1925(a). 
J-A05038-16

- 4 -

(5) The Commonwealth of Pennsylvania pays for Chaya 

Baum’s health insurance with Keystone through the Medicaid 

program.

...

(10) Sometime in 2010, one of the [Appellees]’ employees 

copied data from [Appellees]’ computer system onto an 

unencrypted Flash Drive that was misplaced and never found.

(11) The Flash Drive contained private health information (PHI) 

that is protected: by the [Appellees]’ own practices; under 

federal law governing Privacy of Individually Identifiable Health 

Information (HIPPA Privacy Rule), 45 C.F.R. 160 et seq.; and 

under Pennsylvania Law, the Privacy of Consumer Health 

Information, 31 Pa. Code § 416.

(12) On September 2010, Barbara G. Jones, [Appellees]’ Chief 

Compliance & Privacy Officer, learned that the Flash Drive had 

been lost. She conducted an investigation that involved, among 

other things, identifying what information was on the Flash Drive 

and enlisting assistance of all [Appellees]’ employees in finding 

it.

(13) Through Ms. Jones, [Appellees] provided notice of the 

missing Flash Drive to the Pennsylvania Department of Public 

Welfare (DPW) on October 5, 2010, and to the [F]ederal 

Department of Health and Human Services Office for Civil Rights 

(OCR) on October 25, 2010.

(14) The information on the Flash Drive included, variously, 

names, addresses/zip codes, date of birth, social security 

numbers, member identification numbers and clinical 

information, including medications, lab results and health 

screening information.

(15) According to the report that [Appellees] sent to DPW, the 

Flash Drive contained partial social security numbers of 801 

individuals and the complete social security numbers of seven 

individuals. For the remaining more than 283,000 individuals, 

the data included, variously, member identification numbers, 

clinical health screening information, names and addresses.
J-A05038-16

- 5 -

(16) [Appellees] sent notices to 285,691 individuals concerning 

the loss, informing those individuals what personal data was on 

the Flash Drive and inviting them to contact [Appellees] for 

additional information.

(17) [Appellees] offered credit monitoring to the 808 individuals 

whose partial or complete social security numbers appeared on 

the Flash Drive ... because, in [Appellees]’ view, their PHI was 

most at risk. [Appellant] was not among the 808 individuals 

offered such monitoring.

(18) The notice that [Appellant] received in October of 2010 

informed him that his daughter’s member identification number 

... and health screening information were on the lost Flash Drive.

(19) Neither Chaya Baum’s name, social security number nor 

address was on the Flash Drive.

(20) [Appellant] never contacted [Appellees] for additional 

information.

...

Baum, supra at 2-4 (citing Trial Court Opinion, filed July 25, 2013, at 2, 4-

6).

Also pertinent to the instant appeal is the trial court’s additional finding 

of fact made upon remand:

(35) At the time of Chaya’s enrollment in Keystone’s 

claim, Keystone distributed to her and others a 

Notice of Privacy Practices. N.T., 04.29.13, at 18-

19. The Notice said: 

SUMMARY 

Keystone Mercy Health Plan takes our members’ right to 

privacy seriously. In order to provide you with your 

benefits, Keystone Mercy Creates and/or receives personal 

information about your health. This information comes 

from you, your physicians, hospitals, and other health care 

services providers. This information can be oral, written or 

electronic. Keystone Mercy must keep this information 
J-A05038-16

- 6 -

confidential. We have set up ways to make sure that all 

personal health information is used correctly. For 

example[, a]ll Keystone Mercy employees must sign and 

follow the Company’s Confidentiality Policy. Another 

example is all company computers are password protected 

and equipped with security protection devices. 

***

KINDS OF INFORMATION THAT THIS NOTICE APPLIES TO

This notice covers any information we have that would 

allow someone to identify you and learn something about 

your health.

***

WHO MUST FOLLOW THIS NOTICE

 Keystone Mercy Health Plan

 All employees, staff, interns, volunteers and other 

personnel whose work is under direct control of 

Keystone Mercy Health Plan.

***

OUR LEGAL DUTIES

 The law requires that we maintain the privacy of your 

health information.

 We are required to provide this Notice of Privacy 

Practices and legal duties regarding health information 

to you. 

 We are required to follow the terms of this notice until 

we officially adopt a new notice.

Trial Court Opinion, filed March 25, 2015, at 8-9 (citing Plaintiff’s Exhibit P4; BAUM-00028-00029). 

On January 28, 2011, Appellant filed a complaint alleging a violation of 

the catchall provision of the UTPCPL and asserting claims of negligence and 
J-A05038-16

- 7 -

negligence per se. Appellees filed a removal of the case to federal court, but 

the matter was remanded to the trial court shortly thereafter. Appellant 

filed an amended complaint on September 20, 2012, again alleging a 

violation of the UTPCPL along with the negligence claims. On October 19, 

2012, Appellant filed a motion for class certification, and the trial court 

conducted a hearing on that motion on April 29, 2013. On July 25, 2013, 

the trial court entered an order denying Appellant’s motion for class 

certification, and Appellant timely appealed.

As stated previously, on December 9, 2014, a panel of this Court 

affirmed the trial court’s denial of class certification on Appellant’s 

negligence claims but vacated its decision to deny class certification on the 

UTPCPL deceptive conduct claim. In doing so, the panel noted the trial court 

had concluded that Appellant’s UTPCPL claim did not satisfy the commonality 

requirement of Rule 1702(2) because a plaintiff who brings a private cause 

of action under the UTPCPL must show reliance; thus, “class treatment of a 

UTPCPL claim sounding in fraud is inappropriate.” Baum, supra at 11 

(citing Trial Court Opinion, filed July 25, 2013, at 18). Reasoning that as 

Appellant’s complaint specifically alleged both fraudulent and deceptive 

conduct on the part of Appellees under the UTPCPL’s catchall provision, the 

panel determined the trial court’s conclusion had been incorrect. Baum, 

supra at 11-12 (citing Grimes v. Enterprise Leasing Co. of Phila., LLC, 

66 A.3d 330 (Pa.Super. 2013); Bennett v. A.T. Masterpiece Homes at 
J-A05038-16

- 8 -

Broadsprings, LLC, 40 A.3d 145 (Pa.Super. 2013) for the proposition that 

to the extent a complaint alleges deceptive conduct under the catchall 

provision, a plaintiff need not show justifiable reliance to recover). Noting 

that the trial court had not given further consideration to the other Rule 

1702 factors due to its erroneous conclusion and that this Court will not in 

the first instance make findings of fact and conclusions of law regarding such 

factors, the panel concluded the best course of action was to vacate the trial 

court’s order in part and remand for further proceedings. Baum, supra at 

12-13. 

The trial court heard argument on February 18, 2015, and thereafter, 

entered a second order on March 27, 2015, denying class certification on 

Appellant’s UTPCPL deceptive conduct claim. Appellant filed a timely appeal 

on April 2, 2015, and now presents the following issues for our review:6

1. Whether the lower court improperly denied [Appellant’s] 

motion to certify the class for deceptive conduct under the 

Pennsylvania Unfair Trade Practices and Consumer Protection 

Law (the “UTPCPL”).

2. Whether the lower court abused its discretion when, in 

deciding [Appellant’s] motion for class certification under the 

UTPCPL’s deceptive conduct provision, it ignored the prima facie

and uncontradicted evidentiary showing that the member ID 

numbers used by [Appellees] Keystone Mercy Health Plan 

(“Keystone”) and AmeriHealth Mercy Health Plan (“AmeriHealth,” 

and collectively the “[Appellees]”) are “explicit identifiers” under 

HIPPA, that they can be used to identify an individual insured 

____________________________________________

6 The trial court did not order, and Appellant did not file, a statement of 

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
J-A05038-16

- 9 -

and confidential information about that individual, and that 

[Appellant] and each putative class member is [sic] subject to 

identity theft or loss of privacy as a result of [Appellees’] 

deceptive conduct. 

3. Whether the lower court abused its discretion when, in 

deciding [Appellant’s] motion for class certification under the 

UTPCPL’s deceptive conduct provision, it held that “no evidence 

on the record [supports] a claim of ‘confusion and 

misunderstanding’ because there is no evidence that [Appellees] 

lost anything that [Appellant] claims [Appellees] promised to 

protect” (A14).

4. Whether the lower court violated the class action rule 

requirements and abused its discretion when, in deciding 

[Appellant’s] motion for class certification under the UTPCPL’s 

deceptive conduct provision, it held that: (i) [Appellant] never 

directly “purchased, leased, or gave any consideration at all for 

the policy covering his daughter” (A16); and (ii) “the record does 

not support [Appellant’s] claim to an ‘ascertainable loss.’ There 

is no evidence of a calculable value for the lost data” (id.). 

5. Whether the lower court abused its discretion when, in 

deciding [Appellant’s] motion for class certification under the 

UTPCPL’s deceptive conduct provision, it found that [Appellant] 

is atypical and inadequate to represent the class and that 

certification of the class is not a fair and efficient method of 

resolution.

Appellant’s Brief at 4-5 (emphasis in original). 

Our Supreme Court has set forth our well-settled standard of review 

and detailed the relevant law concerning certification of class actions as 

follows:

Class certification presents a mixed question of law and 

fact. The trial court is vested with broad discretion in deciding 

whether an action may be pursued on a class-wide basis and, 

where the court has considered the procedural requirements for 

class certification, an order granting class certification will not be 
J-A05038-16

- 10 -

disturbed on appeal unless the court abused its discretion in 

applying them. ... The existence of evidence in the record that 

would support a result contrary to that reached by the certifying 

court does not demonstrate an abuse of discretion by that court. 

In deciding whether class action procedural requirements were 

misapplied[,] or an incorrect legal standard was used in ruling on 

class certification, we review issues of law subject to plenary and 

de novo scrutiny.

For the trial court, the question of whether a class should 

be certified entails a preliminary inquiry into the allegations of 

the putative class and its representative, whose purpose is to 

establish the identities of the parties to the class action. 

Pa.R.C.P. [ ] 1707 cmt. ( [providing that the] certification 

process “is designed to decide who shall be the parties to the 

action and nothing more”). As a practical matter, the trial court 

will decide whether certification is proper based on the parties' 

allegations in the complaint and answer, on depositions or 

admissions supporting these allegations, and any testimony 

offered at the class certification hearing. See Pa.R.C.P. [ ] 1707 

cmt. ...

Pursuant to Pennsylvania's civil procedure rules, the trial 

court may allow a representative to sue on behalf of a class if, 

the class is numerous [ ]; there are questions of law or fact 

common to the class (“commonality”); the claims of the 

representative are typical of the class (“typicality”); the 

representative will fairly and adequately protect the interests of 

the class [ ]; and a class action is a fair and efficient method for 

adjudicating the parties' controversy, under criteria set forth in 

Rule 1708. Pa.R.C .P. [ ] 1702.... The class “is in the action until 

properly excluded” by, e.g., an order of court refusing 

certification or an order de-certifying the class. Pa.R.C.P. [ ] 

1701(a) & cmt[.]

During certification proceedings, the proponent of the class 

bears the burden to establish that the Rule 1702 prerequisites 

were met. The burden is not heavy at the preliminary stage of 

the case.... It is essential that the proponent of the class 

establish requisite underlying facts sufficient to persuade the 

court that the Rule 1702 prerequisites were met.

Samuel–Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 15–16 (Pa. 2011) 

(some citations, quotation marks, and brackets omitted). 
J-A05038-16

- 11 -

The UTPCPL explicitly permits a private cause of action. See 73 P.S. § 

201-9.2(a). Herein Appellant sought to certify a class upon a claim of 

deceptive practices under the catchall provision of the UTPCPL which 

prohibits one from “[e]ngaging in any other fraudulent or deceptive conduct 

which creates a likelihood of confusion or of misunderstanding.” 73 Pa.C.S. 

§ 201-2(4)(xxi).7 In accordance with this Court’s directive, on remand the 

trial court applied the Rule 1702 requirements for class certification to 

Appellant’s claim and in doing so initially determined the numerosity 

requirement of Rule 1702(1) had been met, a finding Appellees did not 

contest. Trial Court Opinion, filed March 25, 2015, at 11. Also, in analyzing 

whether there were common issues of law or fact under Rule 1702(2) as it 

pertains to Appellant’s claim Appellees had engaged in “deceptive or unfair 

conduct,” the trial court considered Appellant’s assertions in his Complaint 

that while Appellees informed him his child’s information would be protected 

from disclosure, in fact, it had not been encrypted and was stored on a flash 

drive that was lost. Finding that Appellant’s allegations related to Appellees’ 

common course of conduct relative to all class members and mindful that 

____________________________________________

7 Specifically, Appellant alleged in his First Amended Complaint that 

Appellees “[e]ngag[ed] in fraudulent or deceptive conduct which created a 

likelihood of confusion or of misunderstanding under § 201-2(4)(xxi) 

because [Appellees] created confusion or misunderstanding about the 

supposed safeguards [Appellees] purportedly had in place to ensure that the 

[personal health information] of [Appellant] and the Class was adequately 

protected.” See First Amended Complaint, filed September 20, 2012, at ¶ 

33(b). 
J-A05038-16

- 12 -

individualized determinations as to damages, without more, will not defeat 

the commonality requirement, the trial found Appellant had satisfied this 

element. Id., at 12-14. Understandably, the trial court did not consider 

whether Appellant and other members of the class would need to show 

justifiable reliance in order to recover under the catchall provision. 

Next, the trial court considered whether Appellant’s assertions that 

Appellees’ course of conduct in failing to comply with their promises and 

their legal obligation to protect the data satisfied the “typicality” requirement 

under Rule 1702(3) and created “confusion and misunderstanding,” an 

element of a cause of action under UPTCPL. Stressing Appellees had 

pledged to protect any information it possessed that would allow someone to 

identify and learn about an insured’s health and the record herein revealed 

that any information contained on the flash drive would not identify his 

Appellant’s daughter, the trial court determined Appellant could not claim to 

represent those class members who did lose such data and, therefore, may 

have been subjected to a deception. Id. at 14-15. The trial court also 

questioned Appellant’s standing to bring a private action under the UTPCPL 

as it pertained to a determination of “typicality” under Rule 1702(3) because 

he did not purchase his daughter’s policy or suffer an “ascertainable loss.” 

Trial Court Opinion, filed March 25, 2015, at 16-17 (citing 73 Pa.C.S. § 201-

9.2(a)).
J-A05038-16

- 13 -

The trial court further found that although no evidence suggested 

counsel cannot adequately represent the interests of the class or that there 

are inadequate resources to bring the cause of action, the adequacy of 

representation requirement had not been satisfied herein to the extent that 

individual issues predominate over a common one; therefore, the court held 

Appellant will not fairly and adequately assert and protect a class interest 

under Rules 1702(4) and 1709. Trial Court Opinion, filed March 25, 2015, at 

17-18. 

Finally, the trial court analyzed whether class certification would be a 

fair and efficient method of resolving the underlying dispute under Rules 

1702(5) and 1708. Referencing its prior findings pertaining to typicality and 

standing, the trial court stated that such individual concerns predominate 

over any common issues of liability. For the foregoing reasons, the trial 

court denied Appellant’s motion for class certification on his claim of 

deceptive practices under the UTPCPL’s catchall provision. 

Shortly after the prior panel of this Court remanded the instant matter 

for further proceedings consistent with its memorandum opinion, in reliance 

upon prior decisions of our Supreme Court, this Court clarified in a published 

opinion that “justifiable reliance is an element of all private claims under the 

UTPCPL.” Kern v. Lehigh Valley Hosp., 108 A.3d 1281, 1287 (Pa.Super. 
J-A05038-16

- 14 -

2015) (emphasis added).8 In Kern, this Court rejected what we deemed to 

be the core of the appellant’s claim therein that the element of justifiable 

reliance is applicable only to a claim of fraudulent conduct and in doing so 

reasoned as follows: 

In Grimes [v. Enter. Leasing Co. of Pennsylvania, LLC, 66 

A.3d 330 (Pa. Super. 2013), rev’d on other grounds, ___ Pa. 

____, 105 A.3d 1188 (2014)][9], we were confronted with the 

issue of whether the trial court erred in finding a plaintiff could 

not prevail on her UTPCPL claim because she did not allege a 

misrepresentation with respect to the deceptive conduct alleged 

in her complaint. Citing Bennett v. A.T. Masterpiece Homes 

At Broadsprings, LLC, 40 A.3d 145 (Pa.Super. 2012), we held 

the plaintiff need not allege a misrepresentation because any 

deceptive conduct alleged under the catchall provision of the 

UTPCPL would be sufficient to state a private cause of action. 

This Court's passing reference in a footnote that plaintiff need 

not allege justifiable reliance was stated in the context of 

explaining that plaintiff need not prove the elements of common 

law fraud in an action that alleges deceptive conduct. Within 

days of our decision in Grimes, we decided DeArmitt[v. New 

York Life Ins. Co., 73 A.3d 578 (Pa.Super. 2013)], citing our 

Supreme Court's decision in Toy[v. Metro. Life Ins. Co., 593 

Pa. 20, 928 A.2d 186 (2007)], where we reaffirmed a UTPCPL 

plaintiff still must prove justifiable reliance and causation in a 

private action, because our legislature never intended to do 

away with traditional common law elements of reliance and 

causation in an UTPCPL action. Our decisions in Grimes and 

DeArmitt, therefore, are not inconsistent with the decisions of 

our Supreme Court in Weinberg and its progeny. . . . At the 

core of Appellant's argument is his belief the element of 

____________________________________________

8 Significantly, Appellant fails to address this decision in either his 

Appellant’s Brief or in his Appellant’s Reply Brief. 

9 Given its conclusion, our Supreme Court in Grimes declined to address the 

issue of “whether a private plaintiff who alleged deceptive conduct under the 

UTPCPL’s ‘catchall’ provision need not plead or prove justifiable reliance.” 

Id. at 1192, n.3. 
J-A05038-16

- 15 -

justifiable reliance only is a product of fraudulent conduct.

Appellant fails to recognize that the element of justifiable 

reliance under the UTPCPL is the product of both (a) the 

Legislature's intent not to do away with traditional elements of 

reliance and causation under the UTPCPL, and (b) the express 

provision under 201–9.2 that requires a private action plaintiff to 

prove an “ascertainable loss ... as a result of the use or 

employment by any person of a method, act or practice declared 

unlawful” under Section 201–3 the UTPCPL. 73 P.S. § 201–

9.2(a) (emphasis added). See also Weinberg, Schwartz, supra.

Accordingly, the element of justifiable reliance always 

was a part of private actions under the statutory language 

of the UTPCPL. Amendments in 1996 that added 

deceptive conduct to the catchall provision simply 

included other conduct that did not require proof of all 

elements of common-law fraud. See Bennett, supra.

Consistent with the foregoing cases, we conclude that the 

trial court here was correct in its determination that justifiable 

reliance is an element of private actions under Section 201–9.2 

of the UTPCPL. As such, Appellant had to demonstrate that he 

and all prospective class members justifiably relied on Appellee's 

alleged violations of the UTPCPL and, as a result of those alleged 

violations, suffered an ascertainable loss. 

Kern, supra at 1289-90 (footnotes omitted) (italics in original) (bold 

emphasis added).

In our prior memorandum decision in the matter sub judice, we 

concluded the trial court had not abused its discretion when it denied 

Appellant’s motion for class certification of his claim under the UTPCPL’s 

catchall provision regarding fraudulent conduct. Baum, supra at 13. In 

light of Kern and upon a review of the trial court’s additional findings of fact 

and conclusions of law on remand, we further find the trial court did not 

abuse its discretion in denying Appellant’s motion to certify the class to the 

extent it alleged deceptive conduct under the UTPCPL’s catchall provision. 
J-A05038-16

- 16 -

In Kern, this Court held a plaintiff bringing a private cause of action 

under the UTPCPL must show reliance. As such, Appellant had to 

demonstrate that he and all prospective class members justifiably had relied 

upon the Appellees’ alleged violations of the UTPCPL and suffered an 

ascertainable loss as result of those alleged violations. The trial court herein 

previously found Appellant’s UTPCPL claim sounding in fraud did not satisfy 

the commonality requirement of Pa.R.A.P. 1702(2) because a plaintiff 

asserting a private action under the UTPCPL must show reliance, and, as 

such, class treatment of a claim sounding in fraud is inappropriate. Trial 

Court Opinion, filed July 25, 2013, at 18. However, operating under a preKern analysis of this Court that justifiable reliance is not an element of 

claims pertaining to deceptive conduct brought under the UTPCPC, the trial 

court avoided such a holding on remand and consistent with our December 

7, 2014, memorandum decision considered the other Rule 1702 factors as 

they relate to Appellant’s UTPCPL deceptive conduct claim in its March 25, 

2015, Opinion and Order. In this regard, as is noted supra, when applying 

Rule 1702(2) to the within the matter, the trial court determined it invited a 

finding of commonality. Trial Court Opinion, filed March 25, 2015, at 13-14. 

To the extent that this finding conflicts with this court’s holding in Kern, the 

trial court abused its discretion. 

However, the trial court has broad discretion to determine whether 

class certification is warranted, and it otherwise carefully considered the 
J-A05038-16

- 17 -

numerosity, typicality, adequacy of representation, and fair and efficient 

method of adjudication requirements for class certification under Rule 1702 

and found the class action requirements were not met. Trial Court Opinion, 

filed March 25, 2015 at 11-20. In addition, it also aptly detailed its reasons 

for finding a class action is not a fair and efficient method of adjudication 

under Rule 1708(a)(6). Id. at 19-20. 

Discerning no abuse of discretion in its determination, we would affirm 

the trial court's order denying class certification on the basis that the third, 

fourth and fifth requirements of Rule 1702 have not been met.10 As such, 

we will not disturb the trial court’s ruling on Appellant’s motion for class 

certification under Rule 1702.11 

Order affirmed. 

Judge Olson and Judge Ott Concur in the Result.

____________________________________________

10 By its plain terms, Rule 1702 requires a plaintiff to satisfy all five criteria 

for a class certification to be proper. 

11 This Court may affirm an order of the trial court on any basis. 

Wilkinsburg v. Sanitation Dep’t of Wilkinsburg, 345 A.2d 641 (Pa. 

1975). 
J-A05038-16

- 18 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/26/2016